In a Board press release today, Member Schaumber said of his service:

“It has been a privilege and an honor. I want to thank the Board members with whom I have had the pleasure of serving, my Board staff, particularly my Chief Counsel, Terence Flynn, and my Deputy Chief Counsel, Robert Kane, and all the many distinguished professionals both Board-side and General Counsel-side who demonstrate day-in and day-out their commitment to public service and the implementation and enforcement of the National Labor Relations Act."

Member Schaumber served with current Chairman Wilma Liebman as the Board's only two Members from December 2007 until March 2010.  The two issued several hundred decisions during that time despite lacking the statutory quorum of three Members.  The Supreme Court's recent New Process Steel decision indicated that the Board was not authorized to act during that time.  About this unique period in Board history, Member Schaumber today said:

"It was my good fortune to have served, during the 27-month period in which the Board operated with only two members, with my esteemed colleague Wilma Liebman. Our shared commitment to collaboration and the Agency’s mission enabled us to process scores of cases to resolution, despite our ideological differences. While the Supreme Court ultimately determined that a three-member quorum is necessary to issue decisions, Chairman Liebman and I set a tone for collegiality and dedication to case processing that I hope will carry forward to future Boards.”

The Board had originally planned to have Chairman Liebman and Member Schaumber sit to decide every case returned to the Board following New Process Steel.  As of this date, however, the Board has only issued a handful of decisions out of the 554 cases affected.  

Member Schaumber's departure leaves three Democrats and only one Republican on the Board.  Chairman Wilma Liebman’s term will expire in August of 2011, and Member Craig Becker's recess appointment is due to expire at the end of 2011.  Republican Member Brian Hayes' confirmed appointment will expire in December 2012, while Member Mark Gaston Pearce's confirmed term will end in August 2013.  President Obama will also soon need to appoint a General Counsel, as Acting GC Lafe Solomon may only serve in that capacity for a finite time.

Forseeing these challenging circumstances, Member Schaumber said earlier this summer:

The Court’s [New Process Steel] decision and the events that precipitated it call for reconsidering the entire process for the selection of Board members, the wisdom of packaging Board nominees and the impact of that practice on the Act’s promise of a National Labor Relations Board composed of “impartial government employees.”

In a related note, the National Labor Relations Board's Facebook page today asked as a "trivia" question: "When Member Peter Schaumber's term expires today, for how many days will the Board have been at a full complement of 5 Members since the year 2007?"  The answer -- which may underscore Member Schaumber's thoughts above -- is 59 days... in over two-and-a-half years. 

The employer is a soft drink distribution franchisee. For over forty years, the production and maintenance employees were represented by an “in-house” union, the SCCBE. The employer and SCCBE were parties to a collective-bargaining agreement in effect from November 1, 2009 through October 31, 2013.   During early 2010, new officers of the union helped facilitate an affiliation with Local 150, which was apparently approved at a union meeting.

Subsequently, a significant number of employees protested the affiliation – including by signing a “disaffiliation petition” presented to the employer. The employer refused to recognize Local 150 and refused to hear grievances filed by Local 150. Accordingly, the union filed unfair labor practice charges alleging violations of Section 8(a)(1) & (5) of the Act. The Region issued a Complaint against the employer on or about June 20, 2010, and proceeded to file a petition in the District Court seeking injunctive relief under Section 10(j) of the Act.

To obtain interim injunctive relief under Section 10(j), the Board must demonstrate that it is likely to succeed on the merits, that irreparable harm is likely in the absence of preliminary relief, that the balance of equities tips in favor of such relief, and that an injunction is in the public interest. The Court’s decision to issue an injunction here applies this standard to the specific facts of the case before it – a mid-contract refusal to recognize a new union following an affiliation vote. But it restates a broad view of “irreparable harm” that future Courts might find equally applicable in “first contract” or organizing cases. Section 4 of the proposed but stalled Employee Free Choice Act (S. 560, H.R. 1409) would require Regional Offices to pursue injunctive relief in all organizing and “first contract” cases.   Likewise, without being prompted by legislative action, in 2006 and 2007, former General Counsel Ronald Meisburg issued memoranda to all Regional Offices urging them to consider pursuing 10(j) relief in more “first contract” cases. One might certainly expect that the current Board may be even more aggressive about doing so.

Paragraph 10 of the Regional Director’s Petition in the Sacramento Coca-Cola case describes the showing of “irreparable harm,” thus:

Upon information and belief, it is submitted that unless the aforesaid flagrant unfair labor practices are immediately enjoined and appropriate injunctive relief granted, Respondent’s violations of the Act will continue, with the result that enforcement of important provisions of the Act and of the public policy will be frustrated before Respondent can be placed under legal restraint through the administrative procedures set forth in the Act consisting of a Board Order and an Enforcement Decree of the United States Court of Appeal. It is likely that substantial and irreparable harm will result to Respondent’s employees and their statutorily protected right to organize unless the aforesaid unfair labor practices are immediately enjoined and appropriate relief granted. If it becomes necessary to seek enforcement by the Court of Appeals, it may be years before the unlawful conduct is restrained. Unless injunctive relief is immediately obtained, the effectiveness of the Board’s final order will likely be nullified, the administrative procedure rendered meaningless, and Respondent will continue in its above-described unlawful conduct during the pendency of the proceedings before the Board, with the result that, during this period, the rights of Respondent’s employees guaranteed and protected by Section 7 of the Act to join unions and bargain collectively in good faith through representatives of their own choosing will be frustrated and denied. Moreover, Respondent's unlawful refusal to recognize and bargain with the Union will convey a message from Respondent to its employees that the Union is powerless to effectively represent them, and that the government is powerless to restrain such unlawful conduct. That impression will intensify as the underlying unfair labor practice proceeding takes its course if the requested interim injunctive relief is not granted. Further, while Respondent benefits from its unlawful refusal to recognize the Union pending Board litigation, the Unit employees are contemporaneously and irreparably suffering the loss of the benefits of collective bargaining and Union representation. That loss, which goes beyond wages to include such items as job security and safety and health conditions, and advocacy by a Union representative, cannot be made whole by a Board order in due course. Only by requiring Respondent to recognize and bargain with the Union in good faith as required by the Act can such irrevocable damage to the bargaining process and the employees' Section 7 rights be prevented. Otherwise, Respondent’s unlawful conduct can result in permanent injury to the employees’ loyalties to the Union that the Board’s administrative order in due course will be unable to adequately remedy. Respondent will reap benefits from its unlawful conduct, all in disregard of the policies of the Act and the public interest.

The Region’s position makes no mention whatsoever of the existing contract or long-standing collective-bargaining relationship. The Board’s administrative process and Court of Appeals enforcement described is the exact same process that has long been the typical and accepted legal procedure available to the parties in all Board proceedings. The notion that the normal course of the Board’s and Courts’ procedures to enforce rights under the NLRA in itself satisfies the requisite showing of “irreparable harm”, goes a long way toward mandating preliminary injunctive relief in a much wider range of “refusal to bargain” cases.

Relying upon previous Ninth Circuit holdings, the Court here accepted the Board’s argument that declining to issue the injunction would allow the alleged unlawful conduct to “reach fruition and thereby render meaningless the Board’s remedial authority.” While the Order indicates reliance on the broader notions outlined in the Board’s petition, the Court also took care to identify that the increasing number of employees signing the “disaffiliation” petition as time passed provided proof of the “irreparable harm” against which the union needed protection -– rather than providing support for the employer’s claim that the employees did not want the be represented by Local 150 to begin with.

Accordingly, the Court granted the injunction, including the order to

recognize and bargain with the Union as the exclusive collective-bargaining representative of employees in the Unit, including processing grievances pursuant to the parties’ current collective-bargaining agreement….

The underlying Complaint is scheduled for a hearing before an Administrative Law Judge in October 2010.

Interestingly, the memorandum sent by the Board to all carriers and labor organizations announcing these developments also notes:

This Notice will be the last mailed (via snail mail) to participants from the Office of Legal Affairs.  All subsequent mailings will be sent to our participants via email.  If you have not already done so, please provide your email address to Legal@nmb.gov so you will receive future correspondence from the Office of Legal Affairs.

Republicans and anti-union groups are demanding that a new member of the National Labor Relations Board recuse himself from cases involving chapters of the union he used to work for, a continuation of the fight that surrounded his nomination.

The National Right to Work Foundation sent a letter to Attorney General Eric H. Holder Jr. last week, requesting an investigation into Craig Becker's decision to hear cases involving local chapters of the Service Employees International Union. Becker worked as an associate general counsel for the 1.8 million-member union and the AFL-CIO before his appointment by President Obama in March.

Soon after Member Becker began hearing cases following his recess appointment, Respondents began moving for his recusal from cases involving the SEIU, AFL-CIO or their affilliates.  In connection with the Board's decision in Service Employees Local 121RN (Pomona Valley Hospital Medical Center), Case No. 21-CB-14428 (June 8, 2010), Member Becker issued a decision on all such motions.  He stated therein that he would recuse himself from any cases in which the SEIU or the AFL-CIO was a party, but not from cases involving a subordinate chapter or local.  He indicated that the SEIU international union is a "separate and distinct legal entity" by whom he was employed.

According to the WaPo report, Rep. Darrell Issa (R-CA) is not satisfied with that position:

"There's clear reason to question Becker's impartiality," said Issa spokesman Frederick Hill. "His former employer, SEIU International, tightly controls its local chapters. With such gaping loopholes, the Obama administration's ethics pledge Becker signed isn't worth the paper it was printed on."

Issa requested an investigation by the labor board's inspector general, who responded by affirming Becker's interpretation. A Justice Department spokesman said there is no response yet to last week's letter.

Member Becker remains the only one of the current Board Members whose appointment has not been confirmed by the Senate.

Congress is gone for August—heaven be praised—but that hasn’t stopped unions from quietly mobilizing to push through a big new priority this fall: a pension bailout. Big Labor is going Code Red on the issue, in the face of a looming accounting change that would force companies to confront the Ponzi-style nature of multi-employer pension plans.

We wrote in June about this class of some 1,500 union-run retirement vehicles, in which companies across an entire industry pay into a single pension pool. Hundreds of these multi-employer pools are badly underfunded, thanks to years of labor funneling money into new pay and benefits, rather than into the funds for retirees.

The big problem with these plans is that when one company in the pool goes out of business, the other companies remain on the hook for the cost of the plan. These spiraling liabilities inspired Pennsylvania Senator and Big Labor favorite Bob Casey to introduce legislation to cordon off “orphaned” pensions—those for which an employer has stopped contributing or withdrawn from the plan—and drop them on the federal Pension Benefit Guaranty Corporation.

The PBGC is already significantly underfunded and taxpayers are its ultimate backstop. Yet the Casey bailout could dump as much as $165 billion in new liabilities on the PBGC, while multi-employer plans would get a clean bill of health. What a deal…

In a press release, Senator Casey blamed the pension crisis on the current recession, and on employers who ceased making contibutions and closed as a result.  While the current environment certainly has not made matters any better, the serious underfunding of multi-employer pension plans pre-dates the present state of the economy.  In the summer of 2008, Hudson Institute fellow DIana Furchtgott-Roth highlighted this serious problem in a research paper entitled "Union vs. Private Pension Plans: How Secure Are Union Members' Retirements?"  She studied and reported alarming rates of underfunding as of 2005.

There were critics of the Employee Free Choice Act who believed that bill was motivated primarily by the potential benefits to underfunded pension fund brought about increased union density.  In any event, whether by such indirect or more direct legislative or regulatory action, it appears that addressing the state of multi-employer pension plans will become a hotter topic in the very near future.

More commentary:

• "Building a Secure Future for Multi-Employer Pension Plans" -- Senate HELP Committee Hearing (video and printed testimony available)
• "Why Democrats are Pushing the $165 Billion Union Pension Bailout Bill" -- Competitive Enterprise Institute
• Miller & Long VP Brett McMahon on Fox Business News -- via Halt The Assault's YouTube channel
• "Pension Bill Stalled in Senate" -- Teamsters for a Democratic Union

The Hill's Blog Briefing Room reports:

LIUNA's press release noted that when it left the AFL-CIO in 2006, "the union expressed hope for an eventual reunification, continued to organize much of its political efforts through the AFL-CIO and has been engaged in ongoing discussions with the federation for some time."
 

[General President Terry] O'Sullivan praised LIUNA's partnership with Change to Win over the past several years.

“The LIUNA of today is different from the one that left the AFL-CIO, and that’s in large part due to the strength of Change to Win’s Strategic Organizing Center,” he said. “Neither our ongoing organizing efforts in weatherization and residential construction — the biggest campaigns we have ever launched — would have been launched without Change to Win.”

More commentary:

• "Another Union Rejoins AFL-CIO" -- The Atlantic
• "The Laborers' Return" -- Politico
• "Laborers Returning ti AFL-CIO" -- AFL-CIO Now Blog

According to The Hill:

The president said his administration is enforcing labor provisions in trade agreements and looking to grow the economy by promoting the renewable energy industry.

“At the heart of it is going to be three powerful words: Made in America,” Obama said. “There are no better workers than U.S. workers. There are no better workers than your members.”

Obama vowed to keep fighting for the Employee Free Choice Act (EFCA), so-called “card-check” legislation that would make union organizing much easier.

“Getting EFCA through the Senate will be tough. It’s always been tough; it’ll continue to be tough. But we’ll keep on pushing,” Obama said.

But Obama also said EFCA is not the only means available for promoting unions. He noted his administration’s work in appointing labor-friendly officials to the National Mediation Board and the National Labor Relations Board, agencies that have oversight of union elections and labor law violations.

AFL-CIO President Richard Trumka said Obama “did a great job” with the speech.

Regarding EFCA in particular, Trumka said he and the White House are working on a way to move forward on EFCA, though he would not disclose any details:

“We are working on a way to pass it, and they are active participants in that,” Trumka said.

Trumka said labor realizes Democrats need their help in the upcoming elections and predicted the threat of Republican gains will spur union members into action.

Progressive online organizer Michael Whitney has a slightly different view over at FireDogLake.

More commentary:

• Full Transcript of President's Remarks via Federal News Service
• "Obama pledges labor support" -- Politico
• "If EFCA Won't Pass the Senate, We'll Turn to Federal Labor Boards" -- ShopFloor.org

The Board announced:

The four decisions issued today were in cases that had been pending in federal appeals courts at the time of the Supreme Court decision, and were returned to the Board. The cases are: SPE Utility Contractors, LLC, 7-CA-50767 (unlawful discharge); Chrysler, LLC, 7-CA-51553 (refusal to provide information); ADF, Inc., 1-CA-45068 (repudiation of collective bargaining agreement and withdrawal of recognition); and Regal Health and Rehabilitation Center, 13-CA-44481, et al. (unlawful conduct during organizing campaign, with bargaining order granted). The Board is now at full strength with five members. As described in an earlier press release, each case returned to the Board will be considered by a three-member panel which will include Chairman Liebman and Board Member Schaumber. Consistent with Board practice, the two other Board members not on the panel will have the opportunity to participate in the case if they so desire.

The Board has also posted a database of all contested cases that were decided by the two-member Board.  The database is available via the NLRB's website and includes links to relevant documents and case status updates.

Collective bargaining helped create our middle class. Working people were able to share in the gains of their productivity and labor and management together forged creative solutions to create the powerful engine of the American economy we all are proud of.

In order to rebuild the middle class today, we need to level the playing field for all working people and update our labor laws to fit the 21st century workplace. That's why the President and I support the Employee Free Choice Act - which would update the NLRA so workers can form unions if they choose to without fear or pressure. In addition, millions of workers are not covered by the NLRA including public sector workers, farm workers, domestic workers, and more - so other laws, like the Public Safety Cooperation Act would ensure that firefighters and other public servants have a voice on the job, too.

Some people say that given the state of the economy, we can't afford unions right now. They've got it backwards.

On June 17, 2010, the Supreme Court ruled that the two Members lacked the authority to act on behalf of the Board, effectively rendering all of those Orders invalid.  According to the Board's statement today: 

At the time of the June 17 Supreme Court decision, 96 of the two-member decisions were pending on appeal before the federal courts – six at the Supreme Court and 90 in various Courts of Appeals. The Board is seeking to have each of these cases remanded to the Board for further consideration.

Each of the remanded cases will be considered by a three-member panel of the Board which will include Chairman Liebman and Board Member Schaumber. Consistent with Board practice, the two other Board members not on the panel will have the opportunity to participate in the case if they so desire.

It is unclear at this time how many of the two-member Board rulings not already challenged in the federal appellate courts can or will be contested and how many may now be moot.

Additional commentary:

• "The NLRB's Plan in Wake of New Process Steel" -- Workplace Prof Blog
• "Second Circuit denies NLRB petition in light of New Process Steel" -- Justin F. Keith, Greenberg Traurig (via Lexology)

In mid-April, the publishers of EFCA Report launched Labor Relations Today, in an effort to bring the same level of quality and insight to the broader range of labor relations issues facing employers in the current political and legal environment. While EFCA has currently stalled in the Congress, there has been no shortage of action by President Obama’s administration to transform the landscape of American labor law: a pro-labor National Labor Relations Board, numerous Executive Orders, administrative agency rule-making, litigation, legislative proposals, etc.

At this point, we believe our commentary on EFCA is placed in proper context by inclusion in the LRT blog with its coverage of a broader range of labor relations issues. Accordingly, within the coming weeks, we will be migrating EFCA Report content and subscribers over to the Labor Relations Today blog. There will be a dedicated EFCA tag where those who wish to continue to follow a more narrow set of issues may focus their reading. 

We thank all our readers for their support of EFCA Report, and hope that they will find Labor Relations Today to be an equally -- or more -- valuable resource.

According to the press release issued by the Board:

Before joining the Senate staff, Mr. Hayes was in private practice for 25 years representing management clients in labor and employment law. He began his legal career as a clerk for the NLRB’s Chief Administrative Law Judge, and later served as counsel to the Board Chairman. He is a member of the Massachusetts and District of Columbia bars, and the American Bar Association and its Labor and Employment Law Section. Mr. Hayes earned his undergraduate degree from Boston College and his law degree from Georgetown University Law Center.

Regarding the Senate's confirmation of Member Hayes, Sen. Enzi issued the following statement:

Brian Hayes will bring a valuable combination of private sector and prior NLRB experience to this new position,” said Enzi.  “Additionally, Brian has been a trusted member of my staff in the Senate as my Labor Policy Director and he will be missed here in the Senate.  Brian received broad support from Committee Members on both sides of the aisle, met with Senators, answered their written questions in detail and showed that he is well-qualified and would be impartial on the board.  I am pleased that Brian will now begin his service in this important role.

For at least a month now, the Board will find itself at full strength.  Member Peter Schaumber's term expires in August of this year.  Chairman Wilma Liebman’s term will expire in August of 2011, and Member Craig Becker's recess appointment is due to expire at the end of 2011.  Mr. Hayes' confirmed appointment will expire in December 2012, while Member Mark Gaston Pearce's confirmed term will end in August 2013

On May 11, 2010, the NMB announced that it was changing a decades-old rule regarding the way votes are counted in union representation elections under the Railway Labor Act (RLA).  Previously, in elections under the RLA, a union would only be certified as a bargaining representative of a group of employees if a majority of all eligible voters cast ballots in favor of unionization -- the "majority in unit" standard.  The new standard, the "majority of votes cast" standard, is essentially the standard applied by the National Labor Relations Board in elections under the NLRA -- a union is declared the representative of a unit of employees if a majority of the employees who cast valid ballots vote for union representation.

On May 17, 2010, the association of airlines filed suit, and a few weeks later, the NMB agreed to hold up implementation of the rule until June 30, while the Court considered the parties' respective motions.  The judge's order allows for the July 1, 2010 implementation of the rule.  A more thorough explanation of the decision is expected early next week.

A Bloomberg Business Week online article reports the reactions of the parties thus:

“Non-participation rates are high,” Tamra Moore, an attorney for the National Mediation Board, the panel that issued the rule, said in a June 21 hearing. “That doesn’t mean they don’t want representation. There are many reasons why people don’t vote.”

 *  *  *

“We are disappointed with the Court’s ruling and believe the National Mediation Board does not have the authority to impose this new rule,” the association said in an e-mailed statement. “We will thoroughly study the decision to determine what, if any steps ATA will take, including exercising our right to appeal the ruling.”

Harkin told the Bill Press radio show that he is “still trying to maneuver” in an effort to get the necessary 60 votes to move the bill through the Senate.

 

“To those who think it's dead, I say think again,” Harkin said, adding “…a lot can happen before Election Day, or maybe in lame duck too.”

The piece then chronicles the Senator's past statements about the bill's fate, which BNA suggests tend to depend on the audience to which they are made:

Harkin made the comments about a week after telling the United Auto Workers that he would fight for the legislation “for as long as it takes” (114 DLR C-1, 6/16/10).

 

In May, however, Harkin acknowledged to a legal conference, where participants were largely against the bill, that he still does not have enough votes to pass the bill as written (92 DLR A-8, 5/14/10). Also, just days before that, he told the International Association of Machinists that he had “no higher priority” than getting EFCA signed into law (90 DLR A-7, 5/12/10).

It remains nearly impossible for EFCA in its current form to pass a Senate filibuster in the current Congress.  In a previous statement on the bill, Senator Harkin asserted that he had the 60 votes needed on an undisclosed alternative bill -- but that was prior to the passing of the late Sen. Ted Kennedy (D-MA) and his replacement in the Senate by Sen. Scott Brown (R-MA).  As partisan lines have been drawn sharper since then, it may be questionable whether even some modified version of the bill could pass between now and the next Congress.  

In the run-up to the 2010 midterm elections, however, EFCA is certain to keep labor law reform in the news.

This afternoon, Member Schaumber released a statement criticizing an environment which allows Board vacancies to go unfilled for long periods of time:

The Act contemplated the nomination and confirmation of one Board member each year as a term expired. The practice has developed in recent years, however, of packaging nominees for two or more vacancies and of using short-term recess appointments to fill in while the package is nominated and confirmed.   The result is a merry-go-round in Board appointments with resulting delays in the issuance of the Board’s most significant cases.

Today’s Senate confirmation of two long-pending nominees to the Board, while welcome, does not change the fundamental problem that exists. We are a full board now, but it is only for a short time as my term expires this August and the Chairman’s term expires the following year.

The Court’s decision and the events that precipitated it call for reconsidering the entire process for the selection of Board members, the wisdom of packaging Board nominees and the impact of that practice on the Act’s promise of a National Labor Relations Board composed of “impartial government employees.”

We have speculated a number of times that the endgame on the Board's make-up will likely involve some brokered packaging of Member confirmations and a new General Counsel. 

Writing in a January 2009 white paper on the Employee Free Choice Act, and possible alternative labor law reforms, we similarly noted the problems caused by Board vacancies, often prolonged by partisan politics, suggesting:

Any procedural amendments to prevent the crisis of the last year, or to provide a stronger sense of the value of precedent in Board decisions, would serve only to stabilize labor relations overall.

In a Policy Essay published in the 2008 Harvard Journal on Legislation, Senator Arlen Specter, then a Republican from Pennsylvania, struck a similar note.  The Senator suggested numerous questions that might be asked in any serious effort to advance labor law reform.  Among them:

Would the Board gain legitimacy if Board Members were more insulated from the political appointment process, perhaps through longer terms or a different appointment process?

Time will tell if the current events and developments of the next few months provide an opportunity for the exploration Member Schaumber invites today.

Mr. Hayes' confirmed appointment will expire in December 2012, while Mr. Pearce's term will end in August 2013.  The National Labor Relations Board (NLRB) issued a press release noting:

When Mr. Hayes joins the Board, the NLRB will be at full five-member strength for the first time since December 2007. The Board operated with only two members for 27 months, until April 2010, as confirmation of nominees named by Presidents Bush and Obama were stalled. The two members issued about 600 decisions in matters on which they could agree. However, last week a divided Supreme Court ruled that they were not authorized to do so.

Member Peter Schaumber's term expires in August of this year.  Chairman Wilma Liebman’s term will expire in August of 2011, and Member Craig Becker's recess appointment is due to expire at the end of 2011.  In our post this past weekend about the appointment of Lafe Solomon to be Acting General Counsel, we speculated

With two Republican seats to be open, two Democrats sitting temporarily via recess appointment, and the GC position to be filled permanently, we might look for the White House and Senate to approach a comprehensive compromise to obtain Senate confirmation on all these positions sometime in the late Summer or early Fall. 

Today's announcement may not change that overall approach, but it certainly removes the questions regarding the status of Mr. Hayes and Mr. Pearce.  And in light of the recent New Process Steel decision, ensures that the Board will continue to have at least three Members sitting beyond the expiration of Mr. Schaumber's term.

The Board's announcement notes:

Mr. Solomon, who began his agency career as a field examiner in Seattle in 1972, directed the NLRB’s Office of Representation Appeals for the past decade. Previously he served in various positions on the General Counsel and Board side of the agency, including as staff attorney to 10 Board members. (The Board members were Don Zimmerman, Donald Dotson, Jerry Hunter, John Higgins, James Stephens, Mary Cracraft, John Raudabaugh, William Gould, Sarah Fox and Wilma Liebman). He earned a B.A. degree in Economics from Brown University and a J.D. from Tulane University.

Longtime observers of the NLRB will note that the Members named above for whom Mr. Solomon has served are fairly evenly split between Republicans and Democrats. 

We know what at least one current Board Member thinks of Mr. Solomon via LinkedIn.  While a partner at Creighton, Pearce, Johnsen & Giroux, current Member Mark Gaston Pearce described Mr. Solomon as an “outstanding and efficient director of a very busy and detail oriented Unit of the National Labor Relations Board”.

Mr. Solomon comes into his position just as the Board will be trying to figure out how to address the numerous possible Orders it will find vacated and remanded in the wake of last week's SCOTUS decision in New Process Steel.  General Counsel Meisburg's term was set to expire in August 2010 -- around the same time as the term of sole Republican Member Peter Schaumber.  With two Republican seats to be open, two Democrats sitting temporarily via recess appointment, and the GC position to be filled permanently, we might look for the White House and Senate to approach a comprehensive compromise to obtain Senate confirmation on all these positions sometime in the late Summer or early Fall.

The 5-4 decision describes its holding thus:

The first sentence of [29 U.S.C.] §3(b), the so-called delegation clause, authorizes the Board to delegate its powers only to a "group of three or more members." This clause is best read to require that the delegee group maintain a membership of three in order for the delegation to remain valid.

The majority opinion posits that ""had Congress intended to authorize two members to act on an ongoing basis, it could have used straightforward language."   Justice Stevens' opinion acknowledges the Board's "understandable desire to keep its doors open," and "the costs that delay imposes on ...litigants."  Still, the majority concluded that until Congress decides to amend the law, it's clear language requiring delegation "to no fewer than three members" must prevail. 

Justice Kennedy filed a dissent on behalf of four Justices, arguing:

...the objectives of the statute,which must be to ensure orderly operations when the Board is not at full strength as well as efficient operations when it is, are better respected by a statutory interpretation that dictates a result opposite to the one reached by the Court.

Additional commentary:

• "Supreme Court rules two-member NLRB lacked authority to issue decisions" -- NLRB Press Release
• New Process Steel v. National Labor Relations Board -- SCOTUS Wiki
• "Supreme Court Rules on NLRB, Texting and Judicial Takings" -- The BLT
• "Supreme Court Rules NLRB Needs 3-Member Quorum for Rulings" -- ShopFloor.org
• "Supreme Court Ruling Wipes Out 600 NLRB Decisions" -- FireDogLake
• "NLRB Loses Two-Member Board Case (New Process Steel)" -- Workplace Prof Blog